Horton v. Hendrix

• Decision Date: 05 May 2008
• Docket Number: No. A08A1146.,A08A1146.
• Parties: HORTON v. HENDRIX et al.
• Court: Georgia Court of Appeals

291 Ga. App. 416

662 S.E.2d 227

291 Ga.App. 416

HORTON v. HENDRIX et al.

No. A08A1146.

Court of Appeals of Georgia.

May 5, 2008.

Philips & Kitchings, Richard Phillips, Ludowici, J. Alvin Leaphart, Jesup, for appellant.

Arnold, Stafford, Randolph & Schaeffer, Jeffery L. Arnold, Hinesville, H. Craig Stafford, Tyler L. Randolph, for appellees.

BLACKBURN, Presiding Judge.

In this action alleging that a trust agreement and related deeds were executed as a result of undue influence, plaintiff Susan Horton appeals the jury's verdict and resulting judgment that the signatory was not unduly influenced. She argues that the court improperly instructed the jury and erred in several evidentiary rulings. Discerning no error, we affirm.

Construed in favor of the verdict, R.O.C. v. Estate of Bryant,¹ the evidence shows that Susan was one of three adult children born to her parents. After her father died, Susan became dissatisfied with her mother's administration of the father's estate and petitioned the probate court to remove the mother as executrix of estate. That suit was settled through an agreement in which Susan conveyed to the mother any rights Susan had to the father's estate in exchange for an income-producing property from the estate.

Upset over Susan having brought the suit against her, and convinced that Susan had now received a fair inheritance from her parents' assets, the mother in 1987 executed a first will in which Susan would receive only a very small portion of the mother's personal assets (with nothing to come from those assets inherited by the mother from the father). Based on similar considerations, the mother in 1995 executed a second will, this time giving all of the estate to her son George Hendrix, Jr., with nothing to Susan or to the mother's other daughter. The mother had an oral understanding with George that he would care for the other daughter from the estate's assets.

In 1996, the mother contacted and worked directly with her attorney to have him draw up a power of attorney that gave George power to handle all her affairs, which she then executed on her own. After extensive discussions and negotiations with her attorney, the mother in 1997 had the attorney prepare a trust document, creating a revocable inter vivos trust with George as trustee. The trust document repeated her feeling that Susan had already received her inheritance and accordingly provided that the trust would be operated for the benefit of the mother, George, and George's son, and further provided that upon the mother's death, the trust would convey all its assets to George. Simultaneous with the execution of the trust in May 1997, she executed two deeds conveying her extensive real property holdings into the trust and further executed a third will that devised all of her estate to the trust. George's agreement to care for the other daughter continued.

In 1998, the mother was diagnosed with Alzheimer's disease. In 2001, she moved into a nursing home, and in 2003, she passed away. Pursuant to the terms of the trust, the trust's assets were all conveyed to George that same year. He kept his promise to care for the other daughter.

In 2005, Susan petitioned the probate court to compel George to probate the three wills of the mother, which resulted in the probate court requiring George to file all three wills with the court. Following an evidentiary hearing, that court concluded that the 1997 third will controlled and that no probate of that will was required since the express intent of the mother was to transfer all of her personal and real property through the trust. Susan appealed this judgment to the superior court and then also filed a separate action in that court (against George and George's son) to set aside the trust agreement and the two deeds conveying assets into that trust. Susan asserted that the mother lacked the capacity to enter the agreement and to execute the deeds, and that George (as the mother's fiduciary under the 1996 power of attorney) unduly influenced the mother in her execution of these documents. Per the parties' joint request, the superior court consolidated (i) the appeal of the will probate action and (ii) the action to void the trust agreement and related deeds.

At the end of the jury trial before the superior court, the parties agreed that the only issue before the jury was whether George had unduly influenced his mother to execute the 1997 trust agreement and the two 1997 deeds conveying property into that trust. The jury found that the mother was not unduly influenced, and judgment was entered accordingly. Susan appeals, contending that the trial court erred in its jury charges and in its evidentiary rulings.

1. Jury instructions. Susan first contends that the trial court erred in instructing the jury by giving some misleading charges and by failing to give some of her requested charges. "In reviewing an allegedly erroneous jury instruction, we apply the `plain legal error' standard of review." McWilliams v. State.²

(a) Burden of proof. Susan first argues that the trial court erred when it instructed the jury that "[t]he plaintiff has the burden of proof, which means that she must prove whatever it takes to make out her case except for any admissions by the defendants in their pleadings or in open court. The plaintiff must prove her case by a preponderance of the evidence. . . ." Citing Parker v. Spurlin³ and Trustees of Jesse Parker Williams Hosp. v. Nisbet,⁴ Susan reasons that where the evidence shows that a person in a weakened mental condition transfers assets to a dominant party who is in a confidential relationship with the weakened grantor, a presumption of undue influence in the transaction arises, which places the burden of showing the absence of an undue influence upon the grantee. She points out that she presented some evidence — though contradicted by George — that the mother was in a weakened mental state in 1997 (memory loss, confusion, loss of sense of time, possible early onset of Alzheimer's), at which time George was her dominant fiduciary in that he had a general power of attorney to manage all her affairs. Because a presumption of undue influence would arise under these circumstances, she claims she did not bear the burden of persuasion on the issue of undue influence.

Susan misapprehends the legal effect of presumptions under Georgia civil law. As stated in Nisbet, if one party introduces "evidence of circumstances which under the law causes a presumption of undue influence to arise, the burden of going forward with the evidence shift[s] to the [other party]." (Emphasis supplied.) Supra, 191 Ga. at 840(5), 14 S.E.2d 64. Thus, the burden being shifted to the other party is the burden to produce evidence rebutting the presumption (which George produced here); it is not the ultimate burden of persuasion which never shifts from the party asserting the claim of undue influence. Miller v. Miller⁵ explained:

Concerning the effect of a presumption on the burden of proof, the rule, generally, is that while a presumption operating in favor of the party having the ultimate burden of persuasion requires the opposing party to go forward with evidence rebutting the presumption, it does not shift the original burden of persuasion. That burden remains with the party upon whom it was originally cast.

(Footnote omitted.)

Thus, the trial court correctly instructed the jury that Susan as the party asserting the claim of undue influence bore the ultimate burden of persuasion on this matter, despite the presumption of undue influence that might arise regarding property transfers to dominant fiduciaries from weakened grantors. The jury was thoroughly instructed on this presumption and its ramifications and was given the proper framework in which to decide the case based on the evidence presented from both sides. We discern no error.

(b) Susan's requested jury charges. Susan complains that five of her requested jury charges (Charge Nos. 1 through 5) were not given by the trial court, which requires reversal. We disagree.

Regarding Charge Nos. 1 and 5, we note that following the court's instructions to the jury, Susan raised no objection to the court's alleged failure to give these written charges. Although a civil party need not, following the court's instructions to the jury, restate the specific grounds for an objection when objecting to the court's failure to give a requested written jury charge, nevertheless "all objections regarding a jury charge must be made on the record after the jury has been instructed. . . ." Golden Peanut Co. v. Bass.⁶ Failure to do so waives the matter on appeal. Id. See OCGA § 5-5-24(a).

Regarding Charge Nos. 2, 3, and 4, we hold that the trial court instructed the jury sufficiently on the principles covered by these charges.

It is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case. All that is necessary, provided the requested charge accurately states the relevant principles of law, is that these principles be fairly given to the jury in the general charge. When it can be determined that the charge actually given conveys correctly the intent of the law and is so framed as to be applied with understanding to the fact situation, denial of a request for a specific charge is not reversible error.

(Citations and punctuation omitted.) Hitchcock v. Key.⁷ See Imperial Foods Supply v. Purvis.⁸

Charge No. 2 specified the ways that the jury might find undue influence generally was exercised; Charge No. 3 focused on ways that the jury might find that George in this particular trust agreement may have exercised undue influence; and Charge No. 4 instructed on the presumption of undue influence where a conveyance to a dominant fiduciary is executed by one with a weakened mind. The relevant legal principles in each of these requested charges were fairly...